Australian judge's ruling 'insulting, nonsense'

An Australian judge's comments that New Zealand's justice system is unjust and oppressive have been labelled as "insulting" and "a nonsense" by members of New Zealand's legal profession.

On Friday, Justice Rodney Madgwick blocked the extradition to New Zealand of two Catholic clergymen - Brother Roger Maloney and Father Raymond Garchow - facing historical child sex abuse charges, on the grounds that the differences in the New Zealand and Australian legal systems and the length of time since the alleged crimes would make it difficult for the men to receive a fair trial.

Justice Madgwick's judgment said there would be a "high degree" of unfairness to the clergymen.

"Such trials would occur without the guarantee of a strong warning by the judge to the jury as to the very real problems in meeting such old allegations.

"In Australia the applicants would have such a guarantee. Australian courts would not permit any such trial to occur without such a warning being given, however serious the charges."

Criminal lawyer John Miller said yesterday that it was "a nonsense" that there was such a difference between the judicial systems.

"The very nature of these types of cases is that they are going to be historical. The judge would direct the jury accordingly. I would think they would get a fair trial."

Mr Miller said the New Zealand judicial system had a good reputation internationally. "These comments are equating us to a banana republic. It's frankly out of touch."

National MP Chris Finlayson, formerly a Wellington barrister, said the comments were unfair and insulting.

"I think that kind of comment is chauvinistic nonsense. It is not particularly pleasant for our legal system when judges in Australia make those remarks."

Male Survivors of Sexual Abuse Trust manager Ken Clearwater said campaigners were "gutted".

"I can't understand how another judicial system, like the Australians, could say whether ours is the right system or not."

Mr Clearwater said he would be appealing to the Government to become involved in the case.

The Herald on Sunday has obtained a copy of Justice Madgwick's judgment.

The judge also criticised the case evidence, saying it lacked specifics, potential witnesses and records had been lost, and he had concerns about the veracity of complainants' statements because there could have been "cross-fertilisation" with other complainants.


The story so far

* Brother Roger Maloney, 71, and Father Raymond Garchow, 59, were facing child sex allegations dating back to the 1970s of abusing boys at the Marylands Special School in Christchurch.

* Maloney faced 28 charges and Garchow four charges.

* A Local Court magistrate in Sydney last year ordered their extradition to New Zealand, but that was overturned by the Federal Court on Friday.

* Maloney and Garchow, who have had prostate and throat cancer respectively, reportedly suffered severe depression after their arrests in 2003.